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MIGRATION - Review of decision of the Migration Review Tribunal - application for a student visa - whether the applicant had complied with the attendance requirements - whether the decision of the Tribunal was unfair because it did not take personal circumstances into account - whether the Tribunal failed to address the issue of what constituted substantial compliance - whether the Tribunal took irrelevant attendance records into consideration - whether this type of unfairness amounts to a denial of natural justice as described in Plaintiff S157 v Commonwealth of Australia - whether a claim that the Tribunal applied faulty logic is reviewable.

Yang v Minister for Immigration [2003] FMCA 134 (11 April 2003)

Yang v Minister for Immigration [2003] FMCA 134 (11 April 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YANG v MINISTER FOR IMMIGRATION
[2003] FMCA 134



MIGRATION - Review of decision of the Migration Review Tribunal - application for a student visa - whether the applicant had complied with the attendance requirements - whether the decision of the Tribunal was unfair because it did not take personal circumstances into account - whether the Tribunal failed to address the issue of what constituted substantial compliance - whether the Tribunal took irrelevant attendance records into consideration - whether this type of unfairness amounts to a denial of natural justice as described in Plaintiff S157 v Commonwealth of Australia - whether a claim that the Tribunal applied faulty logic is reviewable.



S157/2002 v Commonwealth of Australia [2003] HCA 2

NAAM of 2002 v Minister for Immigration [2003] FCAFC 32

Applicant:
YANG FENG



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1029 of 2002



Delivered on:


11 April 2003



Delivered at:


Sydney



Hearing date:


8 April 2003



Judgment of:


Raphael FM



REPRESENTATION

Solicitors for the Applicant:


Mr Ray Turner of Yandell Wright Stell



Counsel for the Respondent:


Mr Michael Wigney



Solicitors for the Respondent:


Clayton Utz


ORDERS

(1) Application dismissed.

(2) Applicant pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1029 of 2002

YANG FENG


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant comes to this court seeking review of a decision of the Migration Review Tribunal to uphold a decision of the delegate of the Minister not to grant him a further student visa. The applicant is a Chinese citizen who first came to Australia on 4 October 1996. He completed his high school studies in this country and received a Higher School Certificate in 1999. He applied for a further student visa on 14 April 1999 and that visa remained in effect until 12 April 2001.

On 12 April 2001 the applicant applied for a further student visa which was refused by the delegate. This refusal was the subject of the decision of the MRT that has been brought to this court.

2. It is common ground between the parties that the application for a student visa is subject to Condition 560.213 in the following terms:

"If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held by the applicant is, or was, subject."

3. The visa last held by the applicant was subject to Condition 8202. That clause is set out in detail at [CB 87]. It requires a visa applicant who had been studying on a previous student visa to have satisfied the Minister that he attended for at least 80% of the contact hours scheduled in his course and achieved an academic result that was certified by the education provider as being, at least, satisfactory.

4. The applicant did not receive satisfactory certificates from his education provider. He produced two attendance certificates, one of which indicated that his attendance for semester 2 of the year 2000 dating from June 2000 to 12 October 2000 was 30.77% excluding medical and approved absences. There were 36 unapproved absences and 2 approved absences in this period. The second certificate stated that the visa applicant's attendance for semester 3 of 2000 from

30 October 2000 to 9 February 2001 was 28.21% excluding medical and approved absences. The visa applicant had 28 unapproved absences during this period. The education provider also sent the department a letter stating that the visa applicant had withdrawn twice from the course. The first occasion was from 14 December 1999 to 23 February 2000 and the second was from 9 May 2000 to 21 June 2000. The provider stated that the visa applicant's participation in the course had been terminated in March 2001 for poor attendance record and unsatisfactory academic progress.

5. In his interview the applicant stated that he was aware of the conditions upon his visa and advised the Tribunal that two major matters had disrupted his course of study. The first was the breakup of his parent's marriage, which required him to return to China and caused him considerable emotional upset. The second was the fact that his father required a cataract operation, which was undertaken in Australia. The applicant claimed medical problems arising out of these matters for which he had received treatment in China during his many visits there.

6. The applicant advised the Tribunal that he had since completed an English course and had enrolled with another education provider. and had completed an English course. There was no evidence about the first course and in relation to the second the Tribunal obtained evidence that the applicant was not so enrolled.

7. At [33] of the Tribunal's decision it states:

"Fourthly, the medical certificates provided by the visa applicant and the periods he spent in China do not account for all of his absences during the visa period. Even if these medical certificate and the periods spent in China had been taken into account, the visa applicant's attendance for semester 2 of 2000 would have been 59.6% (with 21 unapproved absences) and his attendance for semester 3 of 2000 would have been 56.4% (with 17 unapproved absences). The Tribunal is not satisfied that these attendance rates represent substantial compliance with Condition 8202. The visa applicant was unable to provide, to the Tribunal's satisfaction, a reasonable explanation as to why he was absent from his course on those days for which no medical certificate was provided. In the absence of this evidence, the Tribunal is not satisfied that there were circumstances reasonably beyond the visa applicant's control which prevented him from attending his course."

8. Counsel for the applicant submitted that the procedure and reasoning process disclosed on the face of the decision undertaken by the Tribunal was unfair to the applicant. He gave five instances of this unfairness.

9. The first was that the Tribunal dismissed the significance of the applicant's parents marital problems and his father's cataract operation without enquiring as to the duration of those problems or the enduring affect upon the applicant. The second matter was that the Tribunal allegedly dismissed the applicant's medical problems as "his claimed medical problems" [CB 90] when there was clear uncontradicted evidence of his medical problems. The third matter was that the Tribunal did not consider the mental and emotional state of the applicant at the times for which he did not present medical certificates.

10. The fourth matter was that the Tribunal failed to address the issue of what constituted substantial compliance which, he claimed was a substantial pre-condition to a consideration of whether the applicant had substantially complied with the conditions on his visa. Finally, the Tribunal had regard to the applicant's attendance records after the visa period ended when such matters are irrelevant to its consideration.

11. The applicant argues that the decision in S157 of 2002 (S157/2002 v The Commonwealth [2003] HCA 2) at [37] and [38] introduces a concept of unfairness which goes beyond that of mere procedural fairness or the provision of natural justice. The applicant points to the words used by the Chief Justice:

"The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted."

12. The applicant argues that by saying "made unfairly, and in contravention of the requirements of natural justice" the Chief Justice meant to differentiate between the two. I would hesitate to trespass upon the mind of the Chief Justice of Australia but I would doubt whether these words authoritatively convey the meaning attributed to them. In any event, it is clear from the judgment of the majority at [83] that the ratio of this particular decision related to procedural fairness or natural justice alone.

13. As the applicant has not based his claim on a lack of procedural fairness or denial of natural justice this really disposes of the matter. But I would make these points in relation to the five matters raised.

I accept the respondent's submission that it is not the duty of the Tribunal to enquire into matters which the applicant should himself be raising as reasons for his non-compliance with visa requirements. The applicant was assisted by a migration consultant. I cannot see any substance at all in this complaint whether it be of unfairness or otherwise.

14. Reading the decision of the Tribunal as a whole I do not think that it disregarded the applicant's medical problems. It took into account the fact that he had claimed he had medical problems and even went to the extent of calculating whether or not his attendance record would be improved up to the required standard if all medical certificates which he had provided were counted. There does not seem to me to be any unfairness in that.

15. If the Tribunal was to consider the applicant's mental and emotional state at times for which he did not present medical certificates then the applicant would have to give better evidence than that which he did. This was to the effect that he felt tired or was unable to attend his courses. The Tribunal was not acting unfairly in dismissing the value of this evidence.

16. A reading of the Tribunal's reasons for decision would tend to indicate that it did give consideration as to what constituted substantial compliance, see paragraphs 11, 12 and 25-28 of its reasons. The Tribunal's consideration of the applicant's supposed explanation for his failures was directed at a determination of whether the applicant's non-compliance (which was both not disputed and indisputable), was or was not substantial.

17. Finally, the reference to the applicant's post visa period attendance records seems to be a reference to the Tribunal's discovery that the applicant was not telling the truth when he said that he had been enrolled in other courses. It is possible that if he had been enrolled in another course and had attended diligently and completed the course successfully, the Tribunal would have taken a different view as to his "substantial compliance". I see no unfairness in what the Tribunal did in this regard.

18. I would note that to the extent that the applicant's complaint may really be suggesting that the Tribunal applied faulty logic in fact finding such error (which I do not think existed in this case in any event), is still not reviewable, see NAAM of 2002 v Minister for Immigration [2003] FCAFC 32 at [46].

19. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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